React and evaluate the answers to each question below:

1. List and explain one concept from Chapter 11: Special Needs and Administrative Searches

Answer: nce concept that I learned from reading Chapter 11 is that fire, health and housing inspections programs were considered administrative functions or searches that are related to the "special needs" of government. The "special needs" of government are concerned with "the basic government requirements of safety, health, education, and concern for the well-being of the society as a whole" (Gardner & Anderson, 2015, pp. 262-263). Since I live in Texas, I looked up the fire program statutes that we have in place. The fire inspection program's right of entry requirements for Texas falls under GOVERNMENT CODE, TITLE 4. EXECUTIVE BRANCH, SUBTITLE B. LAW ENFORCEMENT AND PUBLIC PROTECTION, CHAPTER 417. STATE FIRE MARSHAL. Section 417.008 outlines the following: "(a) On the complaint of any person, the state fire marshal, at any reasonable time, is entitled to enter any building or premises in the state. (b)The state fire marshal shall enter and is entitled, at any time, to enter any mercantile, manufacturing, or public building, place of amusement, or place where public gatherings are held, or any premises belonging to such a building or place, and make a thorough examination" and "(3) any other condition exists that is dangerous or is liable to cause or promote fire or create danger for fire fighters, occupants, or other buildings or structures. (d) The occupant or owner of the building or premises shall immediately comply with an order made by the state fire marshal under this section.The state fire marshal may, if necessary, apply to a court of competent jurisdiction for writs or orders necessary to enforce this section, and the court may grant appropriate relief. The state fire marshal is not required to give a bond" (GOVERNMENT CODE, 2011). What this means is that if anyone complains about the safety of a structure, then the state fire marshal has the authority to enter at a reasonable time. A reasonable time is generally considered hours that are appropriate and not disruptive, typically not late at night or early in the morning. "Generally the reasonableness or unreasonableness of time used or taken by a party are made subject of judicial review. Reasonable time is interpreted by the court in the in light of the nature, purpose, and circumstances of each case" (U.S. Legal, n.d.).

In Frank v. Maryland (1959), the U.S. Supreme Court (Court) affirmed that 120 of Art. 12 of the Baltimore City Code was valid. Section 120 of Art. 12 stated that when the Commissioner of Health has cause to suspect a problem, then he may demand entry in the day time and if the owner refuses, the owner must pay a fee of $20.00. The justices wrote in their opinion that "Inspection without a warrant, as an adjunct to a regulatory scheme for the general welfare of the community and not as a means of enforcing the criminal law, has antecedents deep in our history. For more than 200 years, Maryland has empowered its officers to enter upon ships, carriages, shops, and homes in the service of the common welfare. In pre-revolutionary days, trade, on which the viability of the struggling Colonies depended, was of primary concern. Thus, at a time when the tobacco trade was a vital part of Maryland's economy, inspections of ships and carriages without a warrant could be made to enforce uniform standards for packing and shipping tobacco" (Justia, n.d). Essentially, the Court decided that imposing a fine of $20.00 for refusal of a warrantless inspection, didn't violate the Fourteenth Amendment's due process clause and was a reasonable violation of privacy rights. In contrast, the Court in Camara v. Municipal Court (1967) held "that administrative searches of the kind at issue here are significant intrusions upon the interests protected by the Fourth Amendment, that such searches when authorized and conducted without a warrant procedure lack the traditional safeguards which the Fourth Amendment guarantees to the individual, and that the reasons put forth in Frank v. Maryland and in other cases for upholding these warrantless searches are insufficient to justify so substantial a weakening of the Fourth Amendment's protections" (The Climate Change and Public Health Law Site, 1998). In Camara, the Court took issue with warrantless searches but were in favor of valid searches in which warrants were needed.

2. List and explain one concept from Chapter 12: Obtaining Statements and Confessions for Use as Evidence

Answer: One concept that I learned from reading chapter 12 was some of the information about polygraph test results as evidence and the controversy surrounding them. A polygraph test is a "scientific instrument which records and displays physiological responses to test items. Modern instrumentation is computerized and includes specialized software to aid the examiner...What does the polygraph record? Today's polygraph records five or more channels of physiological data. Two corrugated tubes are placed around the body, one just above the heart and the other over the stomach to detect motion associated with breathing. Changes in skin moisture are monitored with sensors placed on the fingers or palms. Pulse and relative blood pressure are detected using a standard blood pressure cuff placed on the arm. Many instruments also record changes in blood vessel dilation using a finger sensor and all polygraphs now include sensors to detect body movement. Each component is very sensitive to bodily changes. From the beginning to the end of the test, a person's body emits physiological data that will be later reviewed by the polygraph examiner to determine if the examinee was telling the truth" (American Polygraph Association, n.d.). The idea behind polygraph tests is that people have different states of emotion when they are lying versus when they are telling the truth. Guilty people are typically fearful of being caught so their heart rate, blood pressure, respiration and perspiration increase. This is part of a person's fight or flight response. "The polygraph is designed to detect those subtle changes in a person's physiological responses when they lie. The general idea is that when a person is being honest, their physiological responses remain stable under questioning, whereas a guilty person's heart will race" (Hart, Ph.D., 2020).

Our textbook lists three controversies surrounding polygraph tests. The first is that "polygraph results are not sufficiently reliable and trustworthy". The second is that juries "rely too heavily on the report of polygraph examiners who appear as expert witnesses in criminal or civil cases and testify whether persons taking lie detector tests were truthful or not truthful". The third is "the inability of trial courts to judge the competency of polygraph examiners" (Gardner & Anderson, 2015, p. 307). In the first controversy, Professor Christian Hart cited the American Polygraph Association's estimate of the polygraph test's accuracy to be 87% (Hart, Ph.D., 2020). What this means is that out of every 100 people, the polygraph test can accurately determine if 87 people are lying or telling the truth. 87 out of 100 people is above average odds which is a good measure and at times, better than some eyewitness testimony. In the second controversy, our textbook maintains that juries are considered to rely too heavily on the expertise of the polygraph examiners. This controversy, in my opinion, is without merit. In other criminal and civil cases, juries are expected to rely on the knowledge and experience of expert witnesses. An expert witness is defined by Federal Rules of Evidence Rule 702, Testimony by Expert Witnesses as "A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert's opinion reflects a reliable application ofthe principles and methods to the facts of the case". However, there was a Committee Notes on Rules in 2023 that amended Rule 702 in two aspects. "First, the rule has been amended to clarify and emphasize that expert testimony may not be admitted unless the proponent demonstrates to the court that it is more likely than not that the proffered testimony meets the admissibility requirements set forth in the rule. This is the preponderance of the evidence standard that applies to most of the admissibility requirements set forth in the evidence rules. See Bourjaily v. United States, 483 U.S. 171, 175 (1987) ("The preponderance standard ensures that before admitting evidence, the court will have found it more likely than not that the technical issues and policy concerns addressed by the Federal Rules of Evidence have been afforded due consideration."); Huddleston v. United States, 485 U.S. 681, 687 n.5 (1988) ("preliminary factual findings under Rule 104(a) are subject to the preponderance-of-the evidence standard")...(2) Rule 702(d) has also been amended to emphasize that each expert opinion must stay within the bounds of what can be concluded from a reliable application of the expert's basis and methodology" (Legal Information Institute, 2023). Polygraph test examiners who are American Polygraph Association qualified "must have successfully completed an accredited polygraph education program meeting rigorous APA requirements. As APA members they are also required to maintain their continuing education hours. Those who want to practice certain specialties have additional requirements. All APA members are bound by the APA Bylaws, Standards of Practice and Code of Ethics, and must use only evidence-based valid polygraph procedures" (American Polygraph Association, n.d.). With the training required of APA polygraph test examiners, I would say that they are considered experts in their field and therefore meet the expert witness requirement just like a gun expert witness or a medical expert witness. The third controversy delves into the inability of trial courts to judge the competency of polygraph examiners. I believe that this controversy is closely tied to the second one. If the APA qualified polygraph test examiners are required to have the above listed qualities, experiences, education and skills then they are competent. If trial courts can judge gun expert witnesses or medical expert witnesses then they can judge polygraph text examiner expert witnesses.

In Melvin v. State (1992), the Delaware Supreme Court held that Melvin's refusal to take a polygraph test was a violation of his Fifth Amendment right against self-incrimination. Consequently, "persons charged or suspected of a crime cannot be ordered to take a polygraph (lie detector) test because such compulsion would violate their Fifth Amendment privilege against self-incrimination" (Gardner & Anderson, 2015, p. 307).

3. List and explain one concept from Chapter 13: The Law Governing Identification Evidence

Answer: One concept that I learned from reading Chapter 13 was the use of spectrograms or voiceprints as another way of obtaining identification evidence although Chapter 12 touched upon it. A spectrograph is a machine that creates voice graphs which are then used to analyze "voice recordings based on intensity, frequency, and time gaps" (Gardner & Anderson, 2015, p. 334). The voice recordings can be taken from crimes such as kidnappings or bomb threats. This is one area in evidence that is taking a long time to catch up with other areas in the courts. Other areas of evidence, such as handwriting analysis, require qualifications that fall under Rule 702 of the Federal Rules of Evidence. Rule 702 provides: "A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case" (Gardner & Anderson, 2015, p. 122). In Daubert v. Merrell Dow Pharm., (1993), the U.S. Supreme Court (Court) outlined elements to assist trial courts in concluding if the methodology of evidence is reliable. Those elements are "(1) whether the theory or technique has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error of the method used and the existence and maintenance of standards controlling the technique's operation; (4) the existence and maintenance of standards and controls; and (5) whether the theory or method has been generally accepted by the scientific community" (Justia, n.d.). In 1986, attorney Sharon Gregory (Gregory) wrote an article for the University of Richmond Law Review in which she discussed the use of voice spectrography evidence and its' admissibility in court. The first element that the Court outlined to assist trial courts with the reliability of evidence methods was discussed in Gregory's opening paragraph. She stated that "voice spectrography is not a recent development in the field of evidence; Wigmore foresaw the use of a voiceprint as early as 1937, when he suggested that the individuality of a person's voice provided a possible means of speaker identification" (Gregory, pp. 357-358). She also observed that People v. Straehle (1966) was the first case to have spectrogram evidence admissible in court. Additionally, Gregory cited State Ex Rel. Trimble v. Hedman (1971) which was used to establish identity and Commonwealth v. Lykus (1975) which was used to corroborate identity. In both cases, the spectrogram evidence was admissible in court. Gregory also went on to affirm that the "trend in federal court is to accept the use of

voice spectrography evidence, while the trend in state court is to reject such evidence" (Gregory, p. 358). Gregory also clarified that voice uniqueness and vocal patterns of individuals have been accepted by the courts for many years. She stated that fingerprint and blood sample evidence were based on the same anatomical uniqueness (Gregory, pp. 362-363). She also referred to Dr. Oscar Tosi's (Tosi), a well-respected professor of audiology, speech science and physics at Michigan State University, opinion regarding voice spectrography. Tosi stated "there is general acceptance of this technique among the scientists actually working in the field or genuinely familiar with the field" (Gregory, p. 365). This article was written in 1986 and I mention this date because I'm about to discuss the decision that U.S. District Court for the Southern District of Texas made in the United States v. Angleton (2003) case. In United States v. Angleton, the defendant Robert Angleton "sought to introduce expert testimony of Stephen Cain on the identity of an individual speaking on a tape recording. This court granted the government's motion to strike Stephen Cain's expert testimony on the ground that it does not meet Federal Rule of Evidence 702 and the case law following Daubert v. Merrell Dow Pharm. (1993)" (Casetext, n.d.). What this means is the "trial court refused to admit the expert testimony, finding that the science of voice spectrography lacked reliability and thus was inadmissible under Rule 702 of the Federal Rules of Evidence" (Gardner & Anderson, 2015, p. 334). However, the expert witness, Stephen Cain (Cain), studied under Tosi. Cain earned two degrees in forensic science and trained in voice identification under Tosi at Michigan State University for two years. Cain also trained with the Michigan State Police in the spectrographic identification laboratory. In 1981, Cain became certified as a voiceprint analyst by the International Association for Identification. He worked for the United States Secret Service and the Internal Revenue Service and conducted voice identification for both agencies. He later went into private practice (Justia, n.d.). Cain had an immense amount of training, education and experience and the trial judge refused to allow his testimony into evidence. From what I've read in our textbook and found during research, it appeared that the trial court judges were essentially doing what they wanted and not necessarily following the latest case law or precedent. In 2000, Rule 702 was amended "in response to the decisions of the U.S. Supreme Court in Daubert v. Merrill Dow Pharmaceuticals Co. [509 U.S. 579 (1993)] and Kumho Tire Co. v. Carmichael [119 S. Ct. 1167 (1999)]. In those cases the Court established new standards for determining when a witness may be permitted to testify concerning scientific and technical knowledge" (Gardner & Anderson, 2015, p. 122). This concept was pretty fascinating.

4. Choose one example of a special needs or administrative search discussed in the Chapter 11 (e.g., airport/courthouse security screenings, school searches, drug testing, roadblock/vehicle checkpoints, or workplace inspections in highly regulated industries). Do you believe the government's interest in these searches outweighs individual privacy rights in that context? Why or why not? Explain fully.

Answer: I'm choosing airport security as my example of an administrative search. I absolutely believe this is one of the times in which the government's interest in these searches outweighs individual privacy rights in that context. 9/11 was a terrorist attack on American soil. "Terrorists from al-Qaeda hijacked four commercial airplanes, deliberately crashing two of the planes into the upper floors of the North and South Towers of the World Trade Center complex and a third plane into the Pentagon in Arlington, Virginia... passengers on the fourth hijacked plane, Flight 93, fought back, and the plane was crashed into an empty field in western Pennsylvania about 20 minutes by air from Washington, D.C...The terrorists did not have the capacity to destroy the United States militarily, so they set their sights on symbolic targets instead" (9/11 Memorial & Museum, 2024). The terrorists wanted to destroy America and all that we stand for, including our freedom. I believe any type of threat to our national security is a great reason to institute this type of search which in the process, happens to infringe on our right to privacy.

As technology advances and we learn more through medical advances, society needs change. Courts tend to adapt to societal needs and wants. The judges appointed to the court system also tend to reflect the parties in office at the time. Republican Presidents tend to appoint conservative judges, while Democratic Presidents tend to appoint liberal judges. In a Drake Law Review article, Professor Mark V. Tushnet discusses how the Christian movement and the gay and lesbian movement are creating legal issues that the courts are having to address. He believes "courts are simply one of many institutions that shape and, importantly, reflect culture and society. They have some distinctive characteristics" (Tushnet, 2006, p. 909). After 9/11, our country essentially changed overnight and we became united. We weren't Republicans or Democrats. We were Americans who wanted to protect our country and our rights. Airport screenings were an inconvenience but a small price to pay for our freedom and security. A Cornell University article discussed the impact that airport screenings had on American travelers. Their article cited "Several surveys conducted since 9/11 have found that passengers are willing to accept some additional inconvenience and/or higher prices in order to feel more secure...Moreover, these surveys support TSA claims that the security measures implemented since 9/11 increase passengers' confidence in the safety of air travel... Increased confidence in airline security may result in increased demand for air travel" (Blalock et al., 2007, p. 8).

5. Some jurisdictions require law enforcement to record custodial interrogations, while others do not. In your opinion, should there be a nationwide requirement for recording interrogations? What are the potential benefits and drawbacks of such a policy? Explain fully.

Answer: I believe that all jurisdictions should require law enforcement to record custodial interrogations. The are many benefits of such a policy. Recorded, either with a tape recorder or a video recorder, is evidence that would be very hard to challenge or be refuted. It also provides protection, not only for the police officers but for the accused suspect as well. There is not any mis-remembering when there are recorded interrogations. That is direct evidence that captures the statements of the accused suspect (Gardner & Anderson, 2015, p. 81). For example, an accused suspect was read their Miranda rights and confessed to a murder. But there was not a recording of it to show proof so the defense attorney could argue that the confession was coerced and therefore inadmissible. The American Civil Liberties Union credits these measures to "help prevent wrongful convictions, accurately resolve allegations of police misconduct, and enhance public trust in the justice system's capacity to get it right when confronted with police-civilian violence" (National Association of Criminal Defense Lawyers, 2019). The American Federation of Police and Concerned Citizens believes "that the use of recording devices during interrogation and during other crucial times of an investigation provides a great measure of safety to the interrogating officers and to the departments as well, especially when trying to meet certain legal guidelines and stave off potential litigation. Therefore we endorse your writings pertaining to the promotion of recording devices to be utilized whenever possible" (National Association of Criminal Defense Lawyers, 2019). The use of recorded custodial interrogations can prevent some potential litigation by showing that the police officers handled everything according to policy. This can curb any potential civil lawsuits filed by the accused suspect since the recordings show no evidence that the police officers did anything wrong. The Innocence Project has a list of potential benefits for the use of recorded custodial interrogations. They maintain that law enforcement are "capturing details that may be lost if unrecorded which aids better investigations; creating a record of the suspect's statements, making it difficult for him/her to change the account; permitting officers to concentrate on the interview without the distraction of note taking; providing a record of how the officer acted and treated the suspect during the interview; protecting officers from false claims of coercion; enhancing public confidence in law enforcement; and reducing citizen complaints against the police" (National Association of Criminal Defense Lawyers, 2019). One of the benefits that they listed is that it permits police officers to concentrate on the interview without the distraction of note taking. That is a benefit I hadn't thought of and allows for a more in-depth interview. The police officer can focus on what the accused suspect is saying and pick up on any cues that could lead to different lines of questioning.

6. In your opinion, if an eyewitness identification procedure was flawed or suggestive, should the resulting identification automatically be excluded from evidence, or should it still be considered by the jury with cautionary instructions? Explain fully.

Answer: I don't believe that if an eyewitness identification procedure was flawed or suggestive that the resulting identification should automatically be excluded from evidence. It still should be considered by the jury with cautionary instructions. This type of evidence should be examined by the juries along with the rest of the evidence - whether it's direct or circumstantial. DNA evidence can be just as flawed or suggestive as eyewitness identification. Scientist Naomi Elster explored this theory in an article for JSTOR Daily. She noted that "DNA profiles are often not clean enough to conclusively identify an individual. Ideally, a DNA sample would be complete enough to examine at least 16 different markers, points at which an individual's DNA fingerprint can be sketched out. But when DNA is damaged, as it often is through exposure to moisture or extreme temperatures, only some of these markers will be available, and forensics teams will generate a partial profile. Put simply, if a DNA profile is a complete description of a person's appearance, a partial profile might describe only one of their traitshair color, for instance" (Elster, 2017).

As our textbook points out, "eyewitness identifications will continue to be used as evidence in criminal prosecutions in the United States". To reduce the possibilities of innocent persons being convicted, steps are in place to address these issues. One of those steps is to caution the juries. "Juries are cautioned more extensively by both defense attorneys and prosecuting attorneys about the risks of eyewitness identifications in closing arguments, and judges are giving jury instructions to the same effect" (Gardner & Anderson, 2015, p. 322).